On June 13, 2000, petitioner filed an appeal with the
Code Hearings Officer. By June 21, 2000, the hearing date,
almost half of the exclusion period had run. The hearings
officer upheld the exclusion, citing petitioner's failure to obey
the traffic signal.

On July 9, 2000, the exclusion period expired. On
August 18, 2000, petitioner filed a petition for a writ of review
in the circuit court raising various constitutional challenges to
the ordinance. See ORS 34.020 (authorizing use of writ by
circuit court to review proceedings before inferior tribunal).
On September 9, 2000, the City of Portland filed a return to the
writ of review, after which the parties briefed and argued the
matter. The return addressed petitioner's constitutional
arguments on their merits; it did not mention the fact that the
30-day exclusion period had run. On April 20, 2001, the circuit
court issued an opinion in which it rejected petitioner's
constitutional challenges.

Petitioner appealed to the Court of Appeals. In a per
curiam opinion, the Court of Appeals concluded that, because the
period of exclusion expired on July 9, 2000, the case was moot
before the circuit court rendered its judgment. The Court of
Appeals therefore remanded the matter to the circuit court with
instructions to vacate the judgment and dismiss the writ of
review. Yancy, 185 Or App at 705. We allowed petitioner's
petition for review.

Since the adoption of the Oregon Constitution in 1857,
this court, from time to time, has been required to determine
whether a matter before it is one that is appropriate for
judicial disposition. Historically, this court has described
that undertaking as a determination whether a "justiciable
controversy" exists. In that regard, this court has stated that
"[a] controversy is justiciable, as opposed to abstract, where
there is an actual and substantial controversy between parties
having adverse legal interests." Brown v. Oregon State Bar, 293
Or 446, 449, 648 P2d 1289 (1982). Similarly, this court has
observed that justiciability contemplates "that the court's
decision in the matter will have some practical effect on the
rights of the parties to the controversy." Brumnett v. PSRB, 315
Or 402, 405, 848 P2d 1194 (1993). Encompassed within the broad
question of justiciability are a constellation of related issues,
including standing, ripeness, and mootness. For example, this
court has recognized that, even if a case is otherwise
justiciable, the court will dismiss it as moot if a "decision no
longer will have a practical effect on or concerning the rights
of the parties." Id. at 406. This court also has observed that
"[m]ootness is a species of justiciability, and a court of law
exercising the judicial power of the state has authority to
decide only justiciable controversies." First Commerce of
America, Inc. v. Nimbus Center Assoc., 329 Or 199, 206, 986
P2d 556 (1999).

Petitioner acknowledges the foregoing authorities, but
points out that this court at times has appeared to recognize an
exception to the rule against deciding moot cases. For example,
in 1947, this court utilized such an exception in Perry v. Oregon
Liquor Commission, 180 Or 495, 498-99, 177 P2d 406 (1947). In
Perry, the Oregon Liquor Control Commission (OLCC) suspended a
supper club's liquor license for 60 days. A circuit court held
that the OLCC had overstepped its authority in suspending the
license and reinstated it. The OLCC appealed to this court, but
the club moved to dismiss the appeal, arguing that "the question
as to the suspension of the license [is] a moot one--and
therefore improper to consider" because the period of suspension
already had expired. Id. at 498. The court denied the motion,
indicating that the court would exercise its discretion to decide
a moot question for the guidance of an official administrative
agency, if the question involved the public welfare and was
likely to arise again in the future. Id. at 498-99. In reaching
that conclusion, the court did not examine the text and history
of the Oregon Constitution, but relied on cases from other
jurisdictions. Id. at 499. The court reversed the circuit
court's decision to lift the suspension of the license. Id. at
500-01. Subsequently, this court has followed Perry on several
occasions. See,e.g., Stowe v. School District No. 8-C, Malheur
County, 240 Or 526, 528, 402 P2d 740 (1965); Linklater v. Nyberg,
234 Or 117, 120, 380 P2d 631 (1963); Huffman v. Alexander, 197 Or
283, 333, 253 P2d 289 (1953); State ex rel Smith v. Smith, 197 Or
96, 126, 252 P2d 550 (1953); State ex rel Stadter v. Newbry, 196
Or 331, 337, 248 P2d 840 (1952); Oregon State Grange v. McKay,
193 Or 627, 631, 239 P2d 834 (1952) (illustrating proposition).
However, none of those cases purported to analyze this court's
statement in Perry beyond citing it.

More recently, however, this court has rejected Perry's
rationale for deciding moot cases. In Kay v. David Douglas
School Dist. No. 40, 303 Or 574, 577, 738 P2d 1389 (1987), this
court observed that no justiciable controversy existed between
the parties when the circuit court entered judgment. Therefore,
the court concluded, the case was moot and should have been
dismissed. In Mid-County Future Alternatives Comm. v. Metro Area
Local Gov't Boundary Comm'n, 304 Or 89, 92, 742 P2d 47 (1987),
this court asserted that it would not decide moot, nonjusticiable
cases, regardless of claims of public importance, "because of
[the court's] regard for the constitution of this state, which
separates the power and functions of the departments of
government, Or Const, Art III, § 1, and vests in the courts only
the 'judicial power.' Or Const, Art VII (Amend), § 1." A few
years later, in Barcik v. Kubiaczyk, 321 Or 174, 189, 895 P2d 765
(1995), this court reaffirmed the observations that it had made
in Mid-County.

In summary, Kay, Mid-County, and Barcik indicate, at
least in general terms, that the constitutional grant of
governmental power to the judiciary is limited by the
justiciability requirement. Although the decisions in Mid-County
and Barcik express doubts about this court's constitutional
authority to decide moot cases, this court has not undertaken a
full constitutional analysis of that subject. This case presents
the occasion to do so.

Two constitutional provisions, Article III, section 1,
and Article VII (Amended), section 1, of the Oregon Constitution
make reference to the judiciary. Article III, section 1, was
adopted as part of Oregon's original constitution. That
provision states:

"The powers of the Government shall be divided
into three [separate] departments, the Legislative, the
Executive, including the administrative, and the
Judicial; and no person charged with official duties
under one of these departments, shall exercise any of
the functions of another, except as in this
Constitution expressly provided."

The text of Article III, section 1, prompts an initial
observation. The scope of judicial power can be defined in two
ways: by what it is and by what it is not. The judicial power
is distinct from the executive power and the legislative power,
and it resides in a department separate from the legislative and
the executive departments. The judicial department may not
exercise any of the functions of one of the other departments,
unless the constitution expressly authorizes it to do so.
However, standing alone, that constitutional limitation is of
little assistance. That is, the concept of separation of powers
suggests what judicial power is not, but, without further
investigation, it does little to explain what judicial power is.

To make that determination, we must ascertain the
intended scope of the "judicial power" described in Article VII
(Amended), section 1. That provision does not define judicial
power. Instead, Article VII (Amended), section 1, identifies the
entities that exercise judicial power, namely, "one supreme court
and * * * such other courts as may from time to time be created
by law." Article VII (Original) also merely identified the
location of judicial power, establishing it in "a [Supreme]
Court, [Circuit] Courts, and County Courts[.]" Like Article III,
the text of Article VII (Amended), section 1, offers no other
textual clues about the scope of the "judicial power." That lack
of assistance notwithstanding, the present case requires us to
determine the intended meaning of that term.

When "interpreting a constitutional provision adopted
through the initiative petition," the court's "task is to discern
the intent of the voters." Stranahan v. Fred Meyer, Inc., 331 Or
38, 56, 11 P3d 228 (2000) (citing Roseburg School Dist. v. City
of Roseburg, 316 Or 374, 378, 851 P2d 595 (1993)). In
determining that intent, the "best evidence [] is the text of the
provision itself[; however, the] context of the language of the
ballot measure may also be considered." Id. "If the intent of
the voters is not clear from the text and context of the
initiated constitutional provision, the court turns to the
history of the provision." Id. (citing Ecumenical Ministries v.
Oregon State Lottery Comm., 318 Or 551, 559, 871 P2d 106 (1994)).

As noted above, Oregon voters adopted Article VII
(Amended) through the initiative process in 1910. In doing so,
the phrase "judicial power" was repeated, without modification,
from Article VII (Original) in 1910. The term was left undefined
and unchanged, except for removal of the capitalization of the
letter "J." In the new provision, the list of entities that
would exercise judicial power was changed slightly, but that
change does not reveal any particular intent as to the meaning of
the phrase, "judicial power." Neither are we aware of any
historical evidence that suggests that the voters intended to
alter the meaning of the term "judicial power" from the meaning
that the term enjoyed in 1857. Given the drafter's decision to
carry over the old term into the new amendment, and given the
lack of any evidence from any source of which we are aware that,
identical phrasing aside, something new and different was
intended, we conclude that the voters intended no change to the
substantive meaning of the term "judicial power" in their
adoption of Article VII (Amended), section 1. See generallyState v. Conger, 319 Or 484, 491-502, 878 P2d 1089 (1994) (to
understand meaning of text set out in Article VII (Amended),
section 5, court examined historical background of identical text
in Article VII (Original)).

Because we conclude that the 1910 voters did not intend
to change the meaning or scope of "judicial power" in Article VII
(Amended), section 1, from what it was understood to include in
1857, we must inquire into the meaning and scope of "judicial
power" when Article VII (Original) of the Oregon Constitution was
adopted in 1857. When construing original provisions of the
Oregon Constitution, this court ascertains and gives effect to
the intent of the framers of the provisions at issue. Stranahan,
331 Or at 54-55. That intent is determined by (1) analyzing the
text and context of the provisions, giving words the same meaning
that the framers would have ascribed to them; (2) reviewing the
historical circumstances that led to their creation; and (3)
examining the case law interpreting those provisions. Priest v.
Pearce, 314 Or 411, 416, 840 P 2d 65 (1992). This court's goal
is to apply faithfully the principles embodied in those
provisions to modern circumstances. State v. Rogers, 330 Or 282,
297, 4 P3d 1261 (2000).

The creation of an Oregon judiciary is related to the
death, on February 15, 1841, of Ewing Young, the "wealthiest
American citizen" from the Pacific Northwest territory. Lawrence
T. Harris, A History of the Judiciary of Oregon, in Oregon
Supreme Court Record 73, 75 (Portland, Stevens-Ness 1938). Young
had died intestate and had no known heirs. Id. Because Young's
business had been such an important economic influence on the
territory, the territory's inhabitants felt that they needed to
devise a system to settle his affairs in an orderly fashion. Id.
At a meeting involving "'some of the inhabitants of the
Willamette Valley,'" a "provisional government" was formed
consisting of "a Governor, a supreme judge with probate powers,
three justices of the peace, three constables, and an attorney
general." Id.

Later, in May 1843, another public meeting was held to
institute more formally the provisional government. Id. at 76.
At that meeting, a legislative committee was formed, and, in July
1843, that committee presented a report intended to be "the first
body of rules or regulations which made any approach to laws" of
the Oregon Territory. Id. The report was adopted by vote of the
inhabitants of the territory and vested the judicial power "in a
supreme court consisting of a supreme judge and two justices of
the peace, [and] a probate court * * *." Id. at 76-77.

Because no definitive answer regarding the scope of
judicial power has emerged from the constitutional text and
historical underpinnings of that text, we turn next to the
accepted understanding of the concept of judicial power predating
the adoption of the Oregon Constitution in 1857 as reflected in
contemporary secondary sources, United States Supreme Court case
law, and that of this court. See generallyDeMendoza v. Huffman,
334 Or 425, 437, 51 P3d 1232 (2002) (examining legal works that
were "pervasive in American courts in 1850s"); Smothers v.
Gresham Transfer, Inc., 332 Or 83, 94-112, 23 P3d 333 (2001)
(examining early commentaries and treatises, colonial history,
and case law from other jurisdictions).

Early federal case law is more instructive. In 1792, a
federal statute provided that disabled Revolutionary War veterans
could apply to the federal circuit court for benefits, which
would determine veterans' eligibility. Hayburn's Case, 2 US 408,
409 (2 Dall), 1 L Ed 436 (1792). The Secretary of War then could
decide whether to withhold benefits if he suspected that the
court had erred in its judgment, and Congress could review the
decision of the Secretary of War. In other words, the court's
function was to render a nonfinal opinion, subject to executive-branch revision. As a result, some federal courts refused to
enforce the act. The Attorney General petitioned the Supreme
Court for a writ of mandamus to enforce the law. Id. At first,
the Attorney General's mandamus petition maintained that its
request for relief was "ex officio, without an application from
any particular person, but with a view to procure the execution
of an act of congress, particularly interesting to a meritorious
and unfortunate class of citizens[.]" Id. When the court
rejected that argument, the Attorney General claimed that he was
acting on behalf of Hayburn, a veteran. Id. at 409. The court
ultimately declined to issue a decision in the case because
Congress had changed the procedure for relief, and the case had
become moot. Id. at 410. Furthermore, in a footnote, the
Hayburn court related, with apparent approval, letters from three
lower courts to President Washington. Id. at n 2. The letters
rebuffed, on separation-of-powers grounds, the idea that courts
could provide the kind of advisory opinion that the statute
contemplated. Id.

Viewed narrowly, Hayburn's Case decided only that the
Attorney General could not prosecute the matter ex officio. Once
Congress enacted new legislation, the court considered the
controversy at an end and refused to consider the matter further;
it made no direct comment on the subject of advisory opinions.
See generally Maeva Marcus and Robert Teir, Hayburn's Case: A
Misinterpretation of Precedent, 1988 Wisc L Rev 527 (discussing
procedural posture of case). The presence of the letters,
however, has led subsequent courts to rely on Hayburn's Case as
counseling against the practice of courts issuing advisory
opinions.

In 1852, the United States Supreme Court relied on
Hayburn's Case in a dispute involving claims arising out of a
treaty between the United States and Spain. United States v.
Ferreira, 54 US 40, 49 (13 How) 14 L Ed 40 (1852). Congress had
enacted legislation providing that the federal court in Florida
would evaluate the claims and then forward them to the Secretary
of the Treasury for approval and payment. Id. at 45. In that
instance, the Supreme Court concluded that, where the executive
had some discretion in approving the court's judgment, the lower
court was not acting pursuant to the judicial power, because it
was providing an advisory, non-final, opinion.

Another United States Supreme Court case, discussing a
dispute over a state's ability to grant railroad construction
rights, further illustrates the court's reluctance, during the
period just before Oregon statehood, to issue advisory opinions:

"But on this application for an injunction against the
construction of respondents' [rail]road, the chancellor
was not bound to decide the question, by anticipation:
And, although he may have thrown out some intimation as
to his present opinion on that question, he has very
properly left it open for future decision, to be
settled by a suit at law, or in equity, 'upon the facts
of the case as they may then appear.' But however
probable as this dispute or contest may be, it is not
for this court to anticipate it, and volunteer an
opinion in advance."

Some years later, in David v. Portland Water Committee,
14 Or 98, 104-05, 12 P 174 (1886), a number of taxpayers
challenged the constitutionality of a statutorily authorized
committee that had the power to issue bonds. However, at that
point, the committee had not levied a tax on the taxpayers. At
the end of the opinion, the court expressed doubt that it had the
authority to hear the suit, but decided to consider it anyway:
"A question has been raised as to the right of the respondents to
maintain the suit -- as to whether they have any standing in
court. My impressions are adverse to the right; but in view of
the importance of the case, we have concluded not to consider
[the standing issue]." Id. at 125. The court offered no
justification, constitutional or otherwise, for entertaining a
case in which the plaintiffs seemed to lack standing, beyond the
fact that the court seemed to believe that the public needed an
answer. We deem David of little assistance in determining the
parameters of judicial power, because it offered no substantial
premise for its decision to decide a matter other than its
importance. In order to act, courts must exercise "judicial"
power; the importance of the issue that the courts are asked to
decide, standing alone, does not transform resolution of the
issue into an exercise of judicial power.

While the Oregon courts wrestled with the issue, the
United States Supreme Court eventually changed its own course and
recognized an exception to the federal mootness doctrine that
allows for discretionary review of disputes "capable of
repetition, yet evading review." SeeSouthern Pacific Terminal
Company v. Interstate Commerce Commission, 219 US 498, 514, 31 S
Ct 279, 55 L Ed 310 (1911) (recognizing exception). Since that
time, every state, except Oregon, has adopted that exception and
has employed the exception from time to time in cases involving
alleged harms of a short-term effect -- harms that are too
ephemeral for courts to adjudicate before factual developments
render the disputes involving those harms moot.

The United States Supreme Court itself, however,
continues to grapple with the constitutional basis for the
nonjusticiability of moot disputes, the very concept that led to
the creation of the "capable of repetition, yet evading review"
exception. In Honig v. Doe, 484 US 305, 108 S Ct 592, 98 L Ed 2d
686 (1988), the Court split over both the origin and the
parameters of the mootness doctrine. Honig involved a claimed
violation of the Education of the Handicapped Act (EHA)
respecting two students, Doe and Smith. The majority concluded
that, although Doe's case was moot because he no longer was
eligible for EHA benefits, the case remained justiciable because
there was a reasonable likelihood that Smith again would suffer
the deprivation of EHA rights that had given rise to the action.
As part of that analysis, the majority observed:

Honig, 484 US at 317-18. Chief Justice Rehnquist, in a separate
concurring opinion, disagreed with the majority's comments
regarding Article III. The Chief Justice observed that that
Court's mootness cases often purported to find their support in
Article III of the United States Constitution, yet the Court
simultaneously asserted an exception -- cases capable of
repetition yet evading review -- that was not in that section of
the constitution:

"If it were indeed Art. III which — by reason of
its requirement of a case or controversy for the
exercise of federal judicial power — underlies the
mootness doctrine, the 'capable of repetition, yet
evading review' exception relied upon by the Court in
this case would be incomprehensible. Article III
extends the judicial power of the United States only to
cases and controversies; it does not except from this
requirement other lawsuits which are 'capable of
repetition, yet evading review.' If our mootness
doctrine were forced upon us by the case or controversy
requirement of Art. III itself, we would have no more
power to decide lawsuits which are 'moot' but which
also raise questions which are capable of repetition
but evading review than we would to decide cases which
are 'moot' but raise no such questions."

Id. at 330 (Rehnquist, C.J., concurring). The Chief Justice,
recognizing the dilemma, suggested that the federal mootness
doctrine enjoyed an "attenuated connection" to Article III that
could be disregarded if the court deemed it necessary. Id. at
331. With regard to the case that established the exception,
Southern Pacific, Chief Justice Rehnquist remarked that the
exception was premised on pragmatic considerations, rather than
Article III. Id. at 330-31 (Rehnquist, C.J., concurring).

We cannot assert that the constitutional text and pre-1857 state and federal cases lead to a definitive conclusion
regarding the scope of judicial power under the Oregon
Constitution. We believe, however, that the prevailing view
throughout the American legal landscape in 1857 was that the
constitutional grant of judicial power did not include the power
to decide cases that had become moot at some stage of the
proceedings. As petitioner acknowledges, instances of courts
deciding moot cases based on the perceived need to resolve a
recurring issue involving the public welfare did not occur until
the period between 1895 and 1915. See, e.g., In re Fairchild,
151 NY 359, 361, 45 NE 943 (1897) (deciding moot election issue
because it "was of sufficient importance to require * * *
determination by [that] court"); In re Madden, 148 NY 136, 42 NE
534, 535 (1895) (deciding question "of no practical importance in
the particular case" because it was likely to recur); Matter of
Cuddeback, 3 App Div 103, 39 NY Supp 388, 392 (1896) (deciding
moot case because it was of "great public interest"). As we have
explained, however, the adoption of Article VII (Amended) in 1910
did nothing to change the earlier understanding of judicial power
as that phrase appeared in Article VII (Original).

Based on the foregoing, we conclude that the framers of
the Oregon Constitution, and those who later adopted that
constitution, are most likely to have understood the grant of
judicial power in the restrained sense espoused in the early
Supreme Court cases -- that is, an authority limited to the
adjudication of an existing controversy. Because the scope of
judicial power that they created is limited in the manner just
described, this court did not, in 1857, have the authority to
create a rule that exceeded that circumscribed grant of power.
Neither did the court acquire such authority in 1910.

It follows, we believe, that Perry and the cases that
relied on Perry were wrongly decided. They are overruled. The
more recent cases, such as Barcik, are correct. The judicial
power under the Oregon Constitution does not extend to moot cases
that are "capable of repetition, yet evading review."

Petitioner has requested this court to decide a matter
that no longer is a controversy between the parties. As we have
explained, Article VII (Amended), section 1, of the Oregon
Constitution constrains us from doing so. The circuit court
therefore must vacate its judgment and dismiss petitioner's writ
of review as moot.

The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is vacated.

Decades of this court's decisions support the
conclusion stated above. During the 50-year history of the
"capable of repetition, yet evading review" exception in Oregon,
the exception has been viewed as a pragmatic, prudential response
to the adverse consequences of a strict application of the
mootness doctrine. Half a century ago, this court stated its
rule with admirable clarity:

"We agree that courts ordinarily do not determine moot
questions. There is, however, a well recognized
exception to this general rule. Where the question is
one involving the public welfare, and there is a
likelihood of it being raised again in the future, a
court in the exercise of its discretion may decide it
for the guidance of an official administrative agency."

The majority is certainly correct that the mootness
doctrine, and the exceptions to it, are closely related to the
"judicial power" as that term is used in Article VII (Amended),
section 1. However, this court consistently has viewed the
contours of mootness as a prudential, rather than a
constitutional, matter. SeeOregon State Grange v. McKay, 193 Or
627, 631, 238 P2d 778 (1951) on reh’g, 239 P2d 834 (1952) ("We,
of course, recognize that courts will, in the exercise of
discretion, decide moot questions when the conditions referred to
in the Perry case are present."). With this decision, the
majority bases the mootness doctrine entirely on its
interpretation of the Oregon Constitution and concludes that the
limits of the "judicial power" bar this court from ever
considering a case that has become moot.

In my view, however, nothing in the Oregon Constitution
prohibits this court from deciding a case that becomes moot
during the pendency of the case, when the case involves issues
that are capable of repetition, yet evade review. First I
consider the authorities on which the majority relies in
interpreting Article VII (Amended), section 1, and then I turn to
this case and the reasons why I read the phrase "the judicial
power" more broadly than the majority does.

This case, however, is not about "purely advisory
opinions" or court determinations subject to review by other
branches of government. None of the pre-1857 cases that the
majority discusses addressed whether the federal judicial power
prevents a court from deciding a case that (1) was justiciable at
the time that the parties initiated it, but (2) became moot
during the litigation, and (3) involved events that were likely
to recur, but were of such short duration that they typically
evade judicial review.

The majority declines to rely on cases from other
jurisdictions decided after 1857. Instead, the majority asserts
that post-1857 cases are irrelevant to understanding what the
framers of the Oregon Constitution intended to include within the
"judicial power" because, when that term was used in Article VII
(Amended) (adopted in 1910), it was intended to have the same
meaning as the term had in Article VII (Original)(drafted in
1857). ___ Or ___ (slip op at 24-25). I disagree.

First, the majority notes that the drafters of Article
VII (Amended) indicated no intent to change the meaning of
"judicial power" from Article VII (Original). However, that does
not mean that the drafters necessarily intended to preclude the
exercise of the judicial power in the cases at issue here. The
drafters also indicated no intent to set Oregon apart from other
jurisdictions that, by 1910, viewed the judicial power as
extending to those cases that had become moot by the passage of
time, but presented legal issues likely to recur. As the
majority recognizes, the New York courts had determined by the
late 1800s that they properly could decide election law cases
involving issues that were likely to arise again, even though the
particular election had occurred and had rendered the case moot.
In re Madden, 148 NY 136, 139, 423 NE 534 (1895) (deciding
dispute over form of ballot after election, because issue was
likely to recur). Similarly, in Boise City Irrig. & Land Co. v.
Clark, 131 F 415, 419 (9th 1904), the court adjudicated a
challenge to irrigation rates even though the effective period of
the disputed rate had ended during the litigation. The court
noted that "the courts have entertained and decided [moot] cases
heretofore * * * partly because of the necessity or propriety of
deciding some question of law presented which might serve to
guide the municipal body when again called upon to act in the
matter." 131 F at 419.

It is at least as reasonable as the majority's position
to suggest that the voters who adopted Article VII (Amended)
intended the phrase "judicial power" to have the same meaning
that it had in 1857 and that that meaning would be the one that,
by 1910, many state and federal courts recognized as containing
from inception the authority that is in question here. As the
above cases indicate, by 1910, state and federal courts did not
think that the "judicial power" limited their authority to decide
moot cases that raised issues capable of repetition, yet evading
review.

Not a single one of the decisions cited by the
majority, whether from Oregon, the federal courts, or other state
courts, stands for the proposition that a justiciable case that
becomes moot by the passage of time, but presents a controversy
likely to recur, is beyond the "judicial power" -- until this
court's decisions beginning in the late 1980s. As stated above,
I would overrule those later cases.

"(i) an actual course of conduct, even if past,
continues to frame litigation in a factual context and
thereby focus[es] judicial decisionmaking; (ii) the
unlawful causation of a past injury deprives a
defendant of any moral entitlement to freedom from
judicial intervention; (iii) sharp, adversarial
presentation of issues may occur despite the mooting of
a plaintiff's personal stake in the outcome; (iv) since
a defendant who has caused wrongful conduct would
otherwise remain free to repeat it, a judicial decision
forbidding such conduct is not an advisory opinion in
any objectionable sense; and (v) judicial investment in
the resolution of an issue of public importance should
not be squandered."

For the foregoing reasons, although I agree with the
majority's disposition of this case, I disagree with its
conclusion that the judicial power of Article VII (Amended),
section 1, of the Oregon Constitution does not extend to cases
that become moot during the litigation process, but involve
issues that are capable of repetition, yet evade review.

Riggs, J., joins in this specially concurring opinion.

1. At the time of petitioner's arrest, Portland City Code
20.12.265 (2000) provided:

"In addition to other measures provided for
violation of this Code, or any of the laws of the State
of Oregon, any peace officer, as defined by ORS
133.005(3), as amended, or any park official or
employee * * * may exclude any person who violates any
provision of this Code, any City ordinance, [or] any of
the laws of the State of Oregon * * * from any park for
a period of not more than 30 days.

"A. Written notice shall be given to any person
excluded from any City park. Such notice shall specify
the dates and places of exclusion. It shall be signed
by the issuing party. Warning of consequences for
failure to comply shall be prominently displayed on the
notice.

"B. A person receiving such notice may appeal to
the Code Hearings Officer in accordance with the
provisions of Chapter 22.10 of this Code to have the
written notice rescinded or the period shortened.
Notwithstanding the provisions of Section 22.10.030A,
the appeal shall be filed within 5 days of receipt of
the exclusion notice, unless extended by the Code
Hearings Officer for good cause shown.

"C. At any time within the 30 days, a person
receiving such notice may apply in writing to the
Commissioner in Charge of the Bureau of Parks for a
temporary waiver from the effects of the notice for
good reason."

On March 21, 2004, the Portland City Council modified
the ordinance. In particular, it added the following subsection
H:

"If an appeal of the exclusion is timely filed
under Subsection F of this Section, the effectiveness
of the exclusion shall be stayed, pending the outcome
of the appeal. If the exclusion is affirmed, the
remaining period of exclusion shall be effective
immediately upon the issuance of the Hearing Officer's
decision, unless the Hearing's [sic] Officer specifies
a later date."

Under new subsection H, the stay created by an appeal
of an exclusion citation will prevent the matter from becoming
moot through expiration of the period of exclusion. The modified
ordinance has no application to this case.

2. Although Article VII (Original) of the Oregon
Constitution preceded the present Article VII (Amended) by 61
years, it is the later provision that is the source of this
court's power. Thus, our analysis of the concept of "judicial
power" focuses, as it must, on the phrase in the 1910
constitutional amendments. However, as we demonstrate below,
Article VII (Original) still has a pivotal role to play in
interpreting the meaning of its successor.

3. For a more detailed description of the development of the
Oregon judiciary, see Lawrence T. Harris, A History of the
Judiciary of Oregon, in Oregon Supreme Court Record 73 (1938);
Mirth Tufts Kaplan, Courts, Counselors and Cases: The Judiciary
of Oregon's Provisional Government, 1961 Or Hist Q 117; Lawrence
T. Harris, History of the Oregon Code (pts 1 & 2), 1 Or L Rev
129, 1 Or L Rev 184 (1922).

5. We have not found a pre-1857 Wisconsin case that
discussed, in depth, the scope of the judicial power. We have
found one case that acknowledged that the powers of the judiciary
are separate and distinct from those of the legislative and
executive departments of government. SeeState ex rel Resley and
others v. Farwell, Gov., 3 Pin 393 (1852) (so observing).

6. Article III, section 1, of the United States Constitution
provides:

"The judicial Power of the United States, shall be
vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and
establish. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour,
and shall, at stated Times, receive for their Services,
a Compensation, which shall not be diminished during
their Continuance in Office."

8. The reasoning of Southern Pacific is
unhelpful because there is no constitutional analysis
to support the adoption of such an exception to the
mootness doctrine. Rather, in that case, the Court
simply determined, in a conclusory fashion, that it
needed to engage in a law-announcing function
concerning government regulation. In support of that
claim, the Court quoted two prior cases for the
proposition that important public questions required
answers to guide executive conduct without
consideration of whether a controversy continued to
exist between the parties. SeeSouthern Pacific, 219
US at 515-16 (discussing United States v. Trans-Missouri Freight Ass'n, 166 US 290, 17 S Ct 540 (1897)
and Boise City Irrigation & Land Co v. Clark, 131 F 415
(9th cir 1904)) (both so stating).

9. One might argue that, given my view that
courts may decide some moot cases, I also should find
that the trial court had jurisdiction over this case
because the relevant event (the duration of
petitioner's 30-day exclusion order) was so short that
petitioner could not challenge the order in an
administrative hearing, obtain a result, and file his
petition for judicial review before the order had
expired. Whatever the strengths or weaknesses of that
position, it was not addressed by the trial court, the
Court of Appeals, or the majority opinion in this
court. Rather, the trial court addressed the merits of
petitioner's constitutional challenge to the exclusion
ordinance, and the Court of Appeals and the majority
opinion in this court focus on whether the judicial
power extends to deciding a case that becomes moot
after it has been filed in the trial court. I limit my
discussion to that issue.

10. A list of decisions from the other 49 states,
each recognizing a "capable of repetition, yet evading
review" exception to mootness is set out in the
appendix. While those decisions provide limited
guidance for our interpretation of the Oregon
Constitution, to the extent that the doctrine rests, at
least in part, on prudential considerations, as I argue
below, they suggest that virtually every other court
that has considered the doctrine finds it useful.
Moreover, other state constitutions use the same phrase
that appears in the Oregon Constitution -- the
"judicial power" -- to describe the scope of the
judiciary's authority. The majority's interpretation
of that term to mean something different than it means
to every other court in this country suggests that the
majority has the less persuasive argument, as I assert
in the text.

13. In that regard, I agree with the conclusion
Chief Justice Rehnquist reached after reviewing the
federal mootness cases:

"The logical conclusion to be drawn from
these cases, and from the historical
development of the principle of mootness, is
that while an unwillingness to decide moot
cases may be connected to the case or
controversy requirement of Art. III, it is an
attenuated connection that may be overridden
where there are strong reasons to override
it. The 'capable of repetition, yet evading
review' exception is an example."

15. Similarly, the Portland ordinance at issue
here has been amended in a way that appears to permit
an exclusion order to be appealed without the dispute
becoming moot. See___ Or at ___ (slip op at 2 n 1)
(describing amendment to ordinance). If so, this case
would not come within the "capable of repetition, yet
evading review" exception to mootness, even if this
court were to hold that such an exception exists.

16. This court consistently has recognized a
clear distinction between "advisory" opinions, which
are not authorized in Oregon, and proceedings in which
a party seeks a judgment in court. The latter
proceedings, including this case, seek to invoke the
"judicial power" and will be decided by the courts if
they meet the attributes of justiciability discussed in
the text. SeeOregon Medical Association v. Rawls, 281
Or 293, 301-02, 574 P2d 1103 (1978) (distinguishing
between advisory opinions and proceedings that seek
court judgments but are nonjusticiable).

17. The majority opinion essentially dismisses
Southern Pacific as a "conclusory" exercise of the
Court's law-announcing function. ___ Or at ___n 8
(slip op at 23 n 8). In my view, the Court correctly
observed that, if it adhered to its usual rule
regarding moot cases, legal challenges to Interstate
Commerce Commission actions could be "defeated, by
short term orders, capable of repetition, yet evading
review, and at one time the government, and at another
time the carriers, have their rights determined by the
Commission without a chance of redress." Southern
Pacific, 219 US at 515. The Court properly saw that
its law-determining role required it to decide the case
even though it had become moot.

18. I note that, earlier this year, the Portland
City Council amended the ordinance involved here to
stay the effectiveness of an exclusion order if the
order is appealed. See ___ Or at ___ n 1 (slip op at 2
n 1) (quoting amendment to ordinance). I agree that,
if the effectiveness of an exclusion order -- or any
similar order that is challenged in court -- is stayed
while the challenge to the order is litigated, then the
case does not become moot and there is no occasion to
resort to the "capable of repetition, yet evading
review" exception to the mootness doctrine.

19. Similar mootness issues arise when a person
challenges a short-term administrative agency order
that then expires, see, e.g., Perry, 180 Or at 495
(liquor commission order expired after 60 days); a
student claims that a sectarian prayer at a school
graduation is unconstitutional, and the graduation
ceremony is held while the case is pending, Kay v.
David Douglas Sch. Dist. No. 40, 303 Or 574, 738 P2d
1389 (1987), cert den, 484 US 1032 (1988); or when a
political party challenges the state's interpretation
of an election statute, but the case cannot be finally
resolved before the election. E.g., Oregon Republican
Party v. State of Oregon, 301 Or 437, 722 P2d 1237
(1986) (dismissing as moot party's challenge to state
determination that plan to encourage absentee voting by
providing stamped envelopes to voters, along with
absentee ballot request forms, was unlawful).

20. See, e.g., Automobile Club v. State of
Oregon, 314 Or 479, 487, 840 P2d 674 (1992) ("We hold
that the underground storage tank assessment is a 'tax'
under Article IX, section 3a(1)(a), and that, no matter
what label the legislature may attach to a tax on motor
vehicle fuel, whether it be 'fee,' 'excise,' 'tithe,'
'assessment,' or some other term, the revenues derived
therefrom must be dedicated to the listed purposes."
(Emphasis added.))

21. I do not argue, however, that the courts
should decide every case that becomes moot because it
involves events of short duration. The mootness
doctrine has important constitutional roots, even
though, as I have argued above, its contours and
exceptions are in part prudential. In many cases, it
will be appropriate for a court to dismiss a case that
has become moot after it has been filed,
notwithstanding that the issue is one capable of
repetition, yet evading review. And the fact that a
case has or may become moot by the expiration of an
order, the passing of a deadline, or a party's change
in age or status, may well be relevant in this court's
consideration of whether it should allow or deny a
petition for review. See ORAP 9.07 (including, among
criteria for granting discretionary review, whether
issue arises often and whether consequences of decision
are important to the public). I also recognize that
different courts have disagreed as to whether the
"repetition" of the circumstances must involve the same
party and as to the degree of likelihood that the
circumstances will recur. Tribe at 349. If this court
were to adopt the position that I advocate, then those
issues would be addressed in the context of specific
cases; there is no occasion to consider the precise
outlines of the exception in this opinion.